Newfoundland and Labrador Gazette, Part II — 1 March 2018 (Extraordinary Issue) — Regulations NLR 16/18, NLR 31/07

NLG 2018-03-01

Newfoundland and Labrador — Gazette

ST. JOHN’S, THURSDAY, MARCH 1, 2018 THE NEWFOUNDLAND AND LABRADOR GAZETTE EXTRAORDINARY

PART II PUBLISHED BY AUTHORITY NEWFOUNDLAND AND LABRADOR REGULATION NLR 16/18

3 Extraordinary Gazette March 1, 2018 NEWFOUNDLAND AND LABRADOR REGULATION 16/18 Administrative Recalculation of Child Support Regulations under the Family Law Act (O.C. 2018-037) (Filed March 1, 2018) Under the authority of

section 85 of the Family Law Act, the Lieutenant-Governor in Council makes the following regulations. Dated at St. John’s,March 1, 2018. Ann Marie Hann Clerk of the Executive Council REGULATIONS Analysis 1.

Short title 2.

Definitions 3. Recalculation office 4. Recalculation officer 5. Recalculation 6. Notice of objection 7. Recalculation - children over the age of majority or death of a child 8. Effect of recalculation notice 9. Notice of change 10. Notification by recalculation office 11. Application in respect of defective service 12. Rounding to nearest dollar 13. Foreign currency conversion 14. No recalculation of special expenses 15. Refusal to recalculate 16. Application for retroactive child support 17. Correction

4 Extraordinary Gazette March 1, 2018 Administrative Recalculation of Child Support Regulations 16/18 18. Request by department 19. No liability 20. Recalculation does not affect other portions of child support order 21. Conflict 22. Transitional 23. NLR 31/07 Rep. 24. Commencement 1. These regulations may be cited as the Administrative Recalculation of Child Support Regulations. 2. In these regulations (a) "Act" means the Family Law Act; (b) "age of majority" means (

i) in the case of the Act, 19 years of age; and (ii) in the case of Divorce Act (Canada), the age of majority as defined in the Divorce Act (Canada); (c) "agreement" means an agreement as defined in

section 61 of the Act, that has been filed with the court in accordance with subsection 65(5) of the Act and that requires (

i) the payment of child support, and (ii) the annual recalculation of the chil d support payable under the agreement in accordance with the se regulations; (d) "child support order " means an order for the support of a child made by a court; (e) "court" means the Supreme Court and the Provincial Court; (f) "department" means the department p resided over by the minister responsible for the Income and Employment Support Act; (g) "Federal Child Support Guidelines" means the Federal Child Support Guidelines established by regulation under

section 26.1 of the Divorce Act (Canada);

Short title

Definitions

5 Extraordinary Gazette March 1, 2018 Administrative Recalculation of Child Support Regulations 16/18 (h) "former regulations" means the Child Support Service Regulations, Newfoundland and Labrador Regulation 31/07; (i) "income information" means (

i) a copy of (

A) the personal income tax return filed by a party for the most recent taxation year, and (

B) the notice of assessment and any reassessments issued to the party for the most recent taxation year, or (ii) where the annual recalculation takes place before a party has filed his or her income tax return for the most recent taxation year, another document acceptable to the recalculation officer setting out the party’s total income from all sources for that year; (j) "party" means (

i) a payor, or (ii) a person who is entitled to receive child support under a child support order or an agreement; (k) "payor" means the party who is oblig ated to pay child support under a child support order or an agreement; (l) "recalculation office" means the office designated under subsection 3(1); (m) "recalculation notice" means a notice issued under sec tion 5, 6 or 7; (n) "recalculation officer" means a person appointed under subsection 4(1); (o) "review date" means the date in each year which is the anniversary of the commencement of the most recent child support obligation under a child support order, an a greement or a recalculation notice;

6 Extraordinary Gazette March 1, 2018 Administrative Recalculation of Child Support Regulations 16/18 (p) "special or extraordinary expense" means an expense referred to in

section 7 of the Federal Child Support Guidelines and

section 7 of the Child Support Guidelines Regulations; and (q) "table" means (

i) the child support table set out in

Schedule I of the Federal Child Support Guidelines for the province in which the payor resides, or (ii) where the payor resides outside Canada or the residence of the payor i s not known at the time of recalculation, the table set out in

Schedule I of the Federal Child Support Guidelines for the province where the person entitled to receive child support resides. 3.

(1) The r ecalculation office is designated as a child support service for the purpose of

section 25.1 of the Divorce Act (Canada) and paragraph 85(

b) of the Act.

(2) The duties of the recalculation office include (

a) assisting the court in the determination and administration of child support orders; (

b) monitoring compliance with child support or ders or agreements requiring the periodic filing of i ncome information; (

c) reviewing and recalculating the amount of a child support order or an agreement as set out in the applicable table in accordance with

section 5; and (

d) acting on behalf of a party for the purpose set out in s ection 26 of the Federal Child Support Guidelines and

section 24 of the Child Support Guidelines Regulations. 4.

(1) The minister shall appoint one or more recalculation officers.

(2) A recalculation officer may, in the exercise and perfor mance of his or her powers and duties under these regulations Recalculation office Recalculation officer

7 Extraordinary Gazette March 1, 2018 Administrative Recalculation of Child Support Regulations 16/18 (

a) use computer programs or other technical aids; and (

b) engage the services of or seek assistance from accountants or other experts as the recalculation officer considers appropriate. 5.

(1) A payor shall provide his or her income information to the recalculation office no later than 45 days before the review date.

(2) Notwithstanding subsection (1), where a child support order or an agreement was made before the coming into force of these regulations, a payor shall provide his or her income information to the recalculation office no later than (

a) the date in a year on which income information was required to be provided under the c hild support order or the agreement; or (

b) where a child support order or agreement did not specify a date on which income information was to be provided, the date in a year determined by the recalculation office.

(3) Where a payor provides the recalculation office with income information in compliance with subsection (1) or (2), a recalculation officer shall review and recalculate the amount of child support as set out in the applicable table using the income information provided.

(4) Where a payor does not provide the recalculation office with income information in compliance with subsection (1) or (2) or where income information is not available and the child support order or the agreement allows for recalculation , the income of the p ayor shall be considered to be the sum of (

a) the income amount on which the most recent child su pport order, agreement or recalculation notice was based; and (b) 20 percent of the p ayor's income as determined under paragraph (a).

(5) Notwithstanding subsection (4), where a child support order, an a greement or a recalculation notice w as issued under the former regulations and a payor does not provide the recalculation office with income information in compliance with this

section or where income Recalculation

8 Extraordinary Gazette March 1, 2018 Administrative Recalculation of Child Support Regulations 16/18 information is not ava ilable and the child support order or the agreement allows for recalculation , the payor’s income shall be considered to be the sum of (

a) the income amount on which the most recent child su pport order, agreement or recalculation notice was based; and (b) 10 percent of the p ayor's income as determined under paragraph (a).

(6) Where, as a result of the recalculation, the amount of child support would increase or decrease by less than $5 a month, the recalculation officer shall not recalculate the amount of child support for that year, and shall notify the parties that there will be no change in the child support amount for that year.

(7) Where, as a result of the recalculati on, the amount of child support would increase or decrease by $5 or more a month, the recalculation officer shall provide each party with a recalculation notice stating that the recalcu lated amount of child support shall come into effect on the date specified in the recalculation notice unless within 30 days after the date the recalcu lation notice was considered to be received a party objects to the recalculation by filing a notice of objection with (

a) the court (

i) that made the child support order, or (ii) where the agreement was filed; and (

b) the recalculation office.

(8) Where a notice of objection under subsection (7) is not filed, the recalculation officer shall file a copy of the recalculat ion notice with (

a) the court (

i) that made the child support order, or (ii) where the agreement is filed; and

9 Extraordinary Gazette March 1, 2018 Administrative Recalculation of Child Support Regulations 16/18 (

b) the Director of Support Enforcement. 6.

(1) Where a notice of objection under subsection 5( 7) is filed objecting to the recalculation, the amount of child su pport shall not change as a result of the recalculation and the amount of child support in the most recent child support order, agreement or recalculat ion notice remains in effect pending the hearing of the objection.

(2) Where a notice of objection under subsection 5(7) is filed, (

a) the court shall notify the parties to the child support order or the agreement and the recalculation office of the date set for the hearing of the objection; and (

b) on the conclusion of the hearing of the objection the court shall issue a child support order for the recalculated amount or another amount.

(3) Where a notice of objection is withdrawn before the hearing of the objection, the recalculated amount of child support is consi dered to have come into effect on the date specified in the recalculation notice. 7.

(1) Where a child to whom a child support order or agre ement applies has attained the age of majority, the recalcula tion officer may recalculate the amount of child support where the person who is entitled to receive child support under a child support order or an agreement provide s written confirmation in the form required by the recalculation office, that the child meets the requirements of par agraph 37(7)(

a) of the Act or continues to be a child of the marriage as defined by the Divorce Act.

(2) Notwithstanding sub paragraph 15(1)(a)(x), where a child support order or an agreement applies to 2 or more children and a child dies or attain s the age of majority and is no longer entitled to child support, the recalculation office may recalculate the amount of child support of the other children to whom the child support order applies where (

a) the child support order or the agreement was made in accordance with the table; and (

b) the child support order or the agreement states Notice of objection Recalculation - children over the age of majority or death of a child

10 Extraordinary Gazette March 1, 2018 Administrative Recalculation of Child Support Regulations 16/18 (

i) the number of children, and (ii) the total amount of child support determined in accordance with the table. 8. After a recalculation notice has been made by the recalcul ation office in respect of a child support or der or an agreement, the payor under the child support order or the agreement is liable to pay the recalculated amount of child support set out in the recalculation notice commencing on the date specified in the recalculation notice. 9. A party shall notify the recalculation office i n writing of a change to any of the following contact inform ation no later than 10 days after the date of the change: (

a) mailing address; (

b) email address; (

c) telephone number; and (

d) fax number. 10.

(1) Notice to a party required to be given by the recalculation office under these regulations may be (

a) personally served on the party; (

b) sent by ordinary mail to the last known address of the party shown in the records of the recalculation office; (

c) sent by fax to the fax number provided by the party; or (

d) sent by electronic mail, text or other electronic means to the electronic mail address, cellular telephone number or other electronic address provided by the party.

(2) Notice sent under paragraphs (1)(b), (

c) and (

d) is considered to have been received 7 days from the date on which it is sent.

(3) Where notice is sent to the party's last known address or the electronic mail address or fax number provided by the party but is Effect of recalculation notice Notice of change Notification by recalculation office

11 Extraordinary Gazette March 1, 2018 Administrative Recalculation of Child Support Regulations 16/18 returned as undeliverable, the party is considered to have received the notice in accordance with subsection (2). 11. Where a party is considered to have received a recalculation notice and the party satisfies the court that he or she was not aware of the recalculation notice or that the recalculation notice came to his or her attention only at some time later than when it was considered to have been received, the court may make the order that it considers appropriate and fair in the circumstances. 12.

When recalculating child support under these regulations , the recalculation officer shall round the amount payable to the nearest dollar. 13. Where a p ayor provides the recalculation office with in come information that is reported in a currency other than Cana dian dollars, the recalculation office shall convert the income information to Canadian dollars, applying the foreign currency exchange rate as set by the Bank of Canada on the date the recalculation is made. 14.

Where a child support order or an agreement provides for an amount to cover special or extraordinary expenses, the recalculation office shall not recalculate that amount. 15.

(1) The recalculation office shall not recalculate the amount of child support payable (

a) under a child support order or an agreement where (

i) the parties have a shared custody a rrangement within the meaning of the Federal Child Support Guidelines or the Child Support Guidelines Regulations, (ii) the annual income of the p ayor has been d etermined in another manner than by using the sources of income set out under the heading " Total Income" in the T -1 General form issued by the Canada Revenue Agency and adjusted in a ccordance with

Schedule III to the Federal Child Support Guidelines or

Schedule B of the Child Support Guidelines Regulations, (iii) neither party resides in the province, Application in respect of defective service Rounding to nearest dollar Foreign currency conversion No recalculation of special expenses Refusal to recalculate

12 Extraordinary Gazette March 1, 2018 Administrative Recalculation of Child Support Regulations 16/18 (iv) the recalculation office is aware that a date has been set for the court to hear an application respecting the amount of child support specified in the child support order or the agreement, (

v) recalculation may be impracticable or too co mplex for the recalculation office to perform, (vi) the child support order or the agreement was r eceived by the recalculation office less than 4 months before the review date of the child support order or the agreement, (vii) the child support order or the agreement is not in compliance with the requirements of the Rules of the Supreme Court, 1986 or the Provincial Court Family Rules, 2007, (viii) the child support order or the agreement is not in compliance with the requirements of the Federal Child Support Guidelines or the Child Support Guidelines Regulations, (ix) the child support order or the agreement ind icates that for one or more of the following reasons the amount of child support has been determined in a ma nner other than by applying the applicable table amount under the Federal Child Support Guide lines or the Child Support Guidelines Regulations as if the child were under the age of majority: (

A) the child to whom the child support order or the agreement applies has attained the age of majority, (

B) a payor stands in the place of a parent, (

C) there has been a determination of undue har dship, and (

D) the income of the payor is greater t han $150,000 a year, or

13 Extraordinary Gazette March 1, 2018 Administrative Recalculation of Child Support Regulations 16/18 (

x) the child to whom the child support order or the agreement applies has attained the age of majority and either (

A) the court has not ordered that the child support continue after the age of majority, or (

B) the parents have not agreed that child support continue after the age of majority; or (

b) under a child support order where (

i) the child support order was made on an interim or without prejudice basis and does not provide for the recalculation of the child support order by the recalculation office, or (ii) the amount of child support in the child support order is $0.

(2) Where the recalculation office refuses t o recalculate the amount of child support payable u nder a child support order or an agreement, the recalculation office shall (

a) return (

i) the child support order to the parties and to the court that made the child support order, or (ii) the agreement to the parties and to the court where the agreement was filed; and (

b) indicate why recalculation was refused. 16. The existence of a child support order or an agreeme nt providing for the recalculation of child support shall not preclude a person who is entitled to receive child sup port under a child support order or an agreement from making an application to court for retroactive child support. 17.

(1) Where, after the recalculation office has recalculated a child support amount, the recalculation office discovers a mistake in the Application for retroactive child support Correction

14 Extraordinary Gazette March 1, 2018 Administrative Recalculation of Child Support Regulations 16/18 recalculation notice, including a clerical error, the recalculation o ffice may (

a) correct the mistake and issue an amended recalculation notice; or (

b) where the recalculation notice should not have been i ssued, issue a notice that the recalculation notice has been revoked.

(2) A recalculat ion notice that has been corrected under this

section takes effect on the day the recalcu lation notice would have taken effect if there had been no mistake.

(3) An amended recalculation notice or a notice of revoc ation referred to in subsection (1) shall be sent to the pa rties and the Director of Support Enforcement and filed with the court.

(4) Where the amended recalculation notice changes the amount of child support payable under a child support order or an agre ement, the parties have the right to object to the amended recalculation notice in accordance with subsection 5(7). 18. Where the department requests, the recalculation office shall provide a designated employee of the department with a copy of a recalculation notice. 19.

A recalculation officer or a person acting on behalf of a recalculation officer is not liable for a loss or damage suffered by a person because of anything done or omitted to be done in good faith with r espect to the recalculation of a child support order or an agreement. 20. A recalculation of the table amount of a child support order or agreement under these regulations in accordance with a recalculat ion notice does not affect the validity of any other portion of the original child support order or the original agreement. 21.

Where there is a conflict between the recalculation of child support in an agreement and these regulations, these regulations prevail. Request by department No liability Recalculation does not affect other portions of child support order Conflict Transitional

15 Extraordinary Gazette March 1, 2018 Administrative Recalculation of Child Support Regulations 16/18 22.

(1) A child support order issued or an agreement filed before the coming into force of these regulations shall be enforced or othe rwise dealt with under these regulations.

(2) Where a recalculation of the amount of child support in a child support order or an agreement was started but not concluded before the coming into force of these regulations, su bsections 5(2) and (5) apply. 23. The Child Support Service Regulations , Newfoun dland and Labrador Regulation 31/07, are repealed. 24. These regulations come into force on March 1, 2018. ©Queen's Printer NLR 31/07 Rep. Commencement

Extraordinary Gazette Index Title of Act and Subordinate Legislation made thereunder CNLR or NL Reg. Amendment NL Gazette Date & Page No. Family Law Act Administrative Recalculations of Child Support Regulations NLR 16/18 R&S NLR 31/07 March 1/18 p. 3 ST. JOHN’S, THURSDAY, MARCH 1, 2018 17

Document details

Collection	Newfoundland and Labrador — Gazette
Citation	NLG 2018-03-01
Type	gazette
Volume / chapter	printer gazette extraordinary issues 2018 nlg180301 extra
Language	en
Format	pdf
Source	PROVINCIAL
Identifier	1f71b4c190b105b004aef7e521c8ac2295aef8b5

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